The presence of the Assessing Officer at the time of inspection under Section 126 of the Indian Electricity Act, 2003 is mandatory.

Girish Chandra Gupta, J.

This appeal is directed against a judgment and order dated 19th June, 2008 passed by brother Dipankar Dutta J holding that the assessment under Section 126 of the Indian Electricity Act, 2003 suffered from procedural ultra vires and was accordingly quashed. The C. E. S. C. Ltd., was directed to restore supply of electricity within 48 hours without demanding any charges.

Mr. Mitra, Learned Advocate General appearing on behalf of the appellant submitted that the only issue which he is likely to press is a question of law as to “whether presence of the Assessing Officer at the time of inspection under Section 126 of the Indian Electricity Act, 2003 is mandatory?” In the case of Hasi Mazumdar & Anr. –vs.-The West Bengal State Electricity Board & Ors., reported in AIR 2006 Calcutta – 59, he submitted, that one of us held that the presence of the Assessing Officer at the time of inspection was mandatory without disclosing any reasons. He also submitted that a Division Bench of this Court also took the same view in the case of Narayan Chandra Kundu –vs.-State of West Bengal & Ors., reported in AIR 2007 Calcutta 298. According to him, the Division Bench also did not assign any reasons for the aforesaid view expressed therein. He contended that in the case of Reliance Energy Ltd., & Ors. –vs.-Chief Engineer (Electrical) P.W.D. Dept. & Anr., reported in 2006 (6) Maharashtra Law Journal 479 a Division Bench of the Bombay High Court took the view that the Assessing Officer need not be personally present at the time of inspection and that he can rely on the record of the inspection carried out by an officer authorized under Section 135 (2) of the Indian Electricity Act for the purpose of making an assessment. Mr. Mitra contended that the view expressed by the Bombay High Court is based on reason and should, therefore, be accepted. He also drew our attention to a judgment by a learned Single Judge of this Court in the case of CESC Ltd. –vs.-Deputy Chief Engineer, Customer Relation Management Cell & Appellate Authority reported in 2011 (1) CLJ 622, wherein the learned Single Judge has discussed the reasons why presence of the Assessing Officer at the time of inspection is not necessary. Mr. Mitra therefore, contended that the views expressed by the Bombay High Court and the learned Single Judge in the aforesaid judgments should be upheld by this Court. Mr. Mitra submitted a written notes of argument and wanted us to incorporate the same in our judgment so that the submissions made by him continue to remain on the record. We find no reason why we should hesitate in reproducing the written notes submitted by him both in the form of a C.D. and in a hardcopy. The contents of his written notes appearing from the C.D. are as follows:

“Q. Whether the assessing officer u/s 126 of Electricity Act, 2003 must personally inspect the premises, equipments/ devices and records of the consumer for making provisional assessment u/s126?

SUBMISSION:-

The answer should be in the negative as held by the High Court at Bombay and the Hon’ble Justice Jyotirmoy Bhattacharyya.

REASONS:-

1. 3 alternative courses are laid down u/s 126 of the Electricity Act, 2003 to be followed for provisional Assessment. Any one of them may be adopted by the Assessing Officer for making provisional best judgement amassment.

2. “Or” in section 126(1) is disjunctive. This has not been considered by our High Court in two earlier judgments, but has been duly considered by Hon’ble Justice Jyotirmoy Bhattacharya.

3. Section 126 should be interpreted having in mind the possibility of the Assessing Officer being different from the officer designated u/s135. This aspect was not required to be borne in mind by Division Bench as the Assessing Officer and the Officer under section 135 was the same judgement of the Division Bench is not apposite in this case where those two Officers were different persons. Officer u/s126 did not have powers u/s 135.

4. Absurd cons